Michigan Land & Iron Co. v. Deer Lake Co.

• Decision Date: 17 February 1886
• Citation: 60 Mich. 143,27 N.W. 10
• Parties: MICHIGAN LAND & IRON CO., Limited, v. DEER LAKE CO.
• Court: Michigan Supreme Court

27 N.W. 10

60 Mich. 143

MICHIGAN LAND & IRON CO., Limited, v. DEER LAKE CO.

Supreme Court of Michigan

February 17, 1886

Error to Marquette.

Ball &amp Hanscom, for plaintiff and appellant.

E.E. Osborn and H.A. Chaney, for appellee.

MORSE J.

The main question in this case relates to the recovery of treble damages under the statute by the plaintiff. The plaintiff brought suit and recovered judgment in an action of trespass against the defendant for the cutting down and carrying off of pine timber growing upon its lands. The timber was cut by the servants of the defendant under the direction of its foreman. The objections to the verdict, which was that the trespass was casual and involuntary, are confined to alleged errors of the court in his instructions to the jury. It is asserted by counsel for the plaintiff that although the circuit judge undertook to charge the jury that the burden was upon the defendant to show that the trespass was casual or involuntary, yet, in effect, he instructed them quite the opposite, as follows: "In determining this question there must be some evidence of willfulness, wantonness, or evil design on the part of Perry (defendant's foreman,) who committed the trespass. Negligence alone is not sufficient to create liability in a case of this kind. If Perry *** honestly believed *** he was on the lands of defendant, he would not be liable for the trespass himself in treble damages, nor would the defendant in the case." This is claimed to be equivalent to saying that the plaintiff must produce that character of evidence before the defendant would be liable under the statute. The instruction of the court in this respect was correct and in harmony with the previous decisions of this court. Treble damages under this statute are in their nature punitory, and it cannot be assumed that they were designed to be inflicted in any case not involving something like willful wrong. Such damages cannot arise from mere neglect, but must come from active misconduct. Shepard v. Gates, 50 Mich. 498; S.C. 15 N.W. 878; Wallace v. Finch, 24 Mich. 255, 259. The court clearly put the burden upon the defendant to show that the trespass was casual or involuntary, as follows: Mr. Ball, for plaintiff. "I ask your honor to charge the jury that the burden of proof is upon the defendant to show the trespass casual and involuntary, and not upon the plaintiff to show it was willful." By the court. "That is so gentlemen."

The court also instructed the jury that the defendant was liable for the damage done to the land, if any, by cutting and removing the timber. As to the timber cut and not carried away, but left upon the land by the defendant, the court charged the jury that the defendant was liable only in case the plaintiff had no opportunity to sell or dispose of it. This is assigned as error. From the evidence it appears that there was some correspondence between the parties in reference to the logs left upon the land. There was no particular dispute about the quantity cut. It is practically conceded on both sides that defendants cut and carried away about 6,500 feet, and left upon the land about 72,000 feet, of which some 18,000 feet was not merchantable. Defendants wrote Horatio Seymour, Jr., who had plaintiff's interests in charge making an offer for the logs,--61,665 feet at four dollars per thousand coupling said offer with the following condition: "This to cover the matter of trespass on section 17 in full; we to have the logs, and permission to remove them." Seymour, in behalf of plaintiff, replied that he was willing to take defendant's estimate of the logs, but refusing to take the amount offered in full settlement of the trespass, claiming willful negligence in defendant amounting to willful trespass; and stating that for $316.62 he would settle in full. Defendant then wrote, declining to take the logs, and made another offer to cover the damage to Freehold and the value of the logs removed, amounting to $54, which last offer Seymour refused.

The court's charge in full in relation to the logs cut but not removed was as follows: "As to the question of damages, it appears that some of the timber, as I have said had been removed, the rest remaining skidded upon the land. When Rood ascertained that the trespass had been committed he then entered into negotiations, as I have said, to settle the matter and obtain the title to the timber. These negotiations did not result in a settlement. The defendant had no right to enter upon the lands to remove the timber that was cut down and skidded, because in so doing he would be guilty of a fresh trespass. The plaintiff claims that he is liable for the value of the timber so removed from the realty and left upon the land in the manner indicated. The defendant claims that it was the duty of the plaintiff to dispose of the timber, if there was a chance to dispose of it and sell it, and that he cannot recover in damages for the value of the timber if such was the case. I charge you, gentlemen, that if the plaintiff, after ascertaining that the timber was cut upon the land, had an opportunity to dispose of it,--to sell it,--it was his duty to do so; and if he did not do so he cannot recover for the value of the timber that was cut and left upon the lands, or, at least, for the price at which he might have sold it. For illustration: If a man trespass upon another's land, and cuts off 100 cords of wood, and piles it up, and before moving it ascertains that he has trespassed upon another's lands in doing so, and the owner of the land refuses to permit him to remove that wood, and refuses to sell it, he cannot...